Janki Dass Gupta vs The Commissioner Of Police, Delhi ...
1987 Latest Caselaw 66 Del

JUDGMENT

Jagdish Chandra, J.

(1) By means of this writ petition brought under Articles 226 and 227 of the Constitution of India the petitioner Janki Das Gupta prays for the issuance of writ of certiorari or any other appropriate writ, order or direction to quash the entry in the surveillance register and also to quash or close the history sheet pertaining to him. Further direction to the local police is also sought from this Court not to harass the petitioner.

(2) Notice to show-cause was issued to the respondents as to why this writ petition be not admitted and in reply, affidavit of Ram Singh Sho Police Station Hauz Qazi was filed wherein the petition was resisted as one meriting dismissal.

(3) The list of as many as 19 criminal cases has been filed by the police of P.S. Hauz Qazi and the perusal thereof shows that the same are of different police stations but most of them of Police Station Hauz Qazi. This list further reveals that out of these cases one was under Section 420 Ipc, one under Section 9-1/78 under the Opium Act and two under Sections 107/151 Cr. P.C. while all the remaining cases were under the Gambling Act. It is also apparent, from this list that he was convicted only in five cases which were under the Gambling Act whereas in the remaining cases he was acquitted and in two cases discharged whereas only two cases are still spending trial. The cases in which he was convicted were registered against the petitioner on 26/6/1955,1/8/1955, 1/11/1956, 27/7/1960 and 28/5/1967. It is pointed out by the petitioner that in the first four cases during the period from 26/6/1955 to 27/7/1960 he was advised to plead guilty due to paucity of funds necessary for defending the same and on doing so he was simply punished with fine of Rs. 20.00, Rs. 10.00, Rs. 40.00 and Rs. 40.00 and the proceedings in those four cases came to an end. He has also pointed out that his conviction in the 5th case of 28/5/1967 was set aside in appeal. On the basis of the aforesaid five cases the Deputy Commissioner of Police (Crime Prevention) initiated proceedings against the petitioner under Section 48 of the Delhi Police Act, 197S whereupon notice dated 21/11/1978 under Section 50 of the said Act was challenged by the petitioner in Criminal Writ ' No. 65 of 1979 in this Court and the same was quashed by a Division Bench of this Court comprising of V.D. Misra and J.D. Jain, JJ. on the ground that the convictions were not proximate and hence not relevant.

(4) It is now alleged that the local police continues harassing the petitioner and proclaims him to be a history sheeter and a habitual criminal thereby making his life miserable in the absence of justifiable cause and this they have been doing as they did not look upon kindly the act of the petitioner in approaching this Court and vindicating his rights to get illegal proceedings under Sections 48 and 50 of the Delhi Police Act against the quashed.

(5) Mr. O.N. Vohra learned counsel for the petitioner raised the contention that the concerned Deputy Commissioner of Police had not recorded definite reasons for his reasonable belief that the petitioner was a habitual offender while directing his name to be entered in Part Ii of the Register as envisaged by Rules 23.4(3)(b) and 23.5(2) and that the entry of the name of the petitioner in the Register of Surveillance had not been made by the Deputy Commissioner of Police or an officer of still higher rank. It was further pointed out by Mr. Vohra and conceded by Sodhi Teja Singh representing the respondents as also in the reply affidavit of Ram Singh Sho Police Station Hauz Qazi that the history sheet of the petitioner was opened on 31/7/1978 by the then Sho of Police Station Hauz Qazi where after Assistant Commissioner of Police Kamla Market recommended on 1/8/1978 to the Deputy Commissioner of Police for entering his name in Part I of register-1 to the Police Station, and the Deputy Commissioner of Police Central agreed with the recommendation of the Assistant Commissioner of Police and as such he is ordered to be kept under surveillance of the police and he is alleged to be a notorious Satta Gambler.

(6) We called the original record of the history sheet of the petitioner maintained in Police Station Hauz Qazi, Central District, Delhi, and have perused the same and it reveals that the S.H.O. Police Station Hauz Qazi recorded the history sheet of the petitioner on 31/7/1978 and then recommended the same to be entered in Part I of the Surveillance Register whereupon on the next day i.e. 1/8/1978 the A.C.P.Kamla Market made the following noting : "A notorious Satta Gambler. His name be ordered' to be entered in Part I, Register No. X pl."

(7) Thereafter on 3/8/1978 the D.C.P. recorded the noting as under:- "Iagree."

(8) So it would appear that the noting of the Assistant Commissioner of Police and the consequent order of the Deputy Commissioner of Police were passed in view of the history sheet recorded by the S.H.O. Police Station Hauz Qazi. This record further reveals that while recording the history sheet the S.H.O. had before him five cases particulars of which are detailed below : Case No. Under which Result provision of law 1. u/s 12/9/55 Acquitted on 29/3/73 Gambling Act. for want of proof. 2. u/s 12/9/55 Acquitted on 30/4/74 Gambling Act. for want of proof. 3. u/s4201PC. Acquitted on 17/3/75. 4. u/s 12/9/55 Acquitted on 30/6/71 Gambling Act. on benefit of doubt. 5. u/s 12/9/55 Acquitted for want Gambling Act. of proof.

(9) So, it would be seen that at the time of the recording the history sheet the S.H.O. was fully aware that the petitioner was not convicted in any of the above mentioned criminal cases and had rather been acquitted and mostly for want of proof. The opening of history sheet is provided for in Rule 23.9 of the Punjab Police Rules. 1934 (Vol. III) as applicable to Delhi and is reproduced below:-

"HIStorY sheets when opened:

23.9.(1) A history sheet, if one does not already exist, shall be opened in Form 23.9 for every person whose name is entered in the surveillance register, except conditionally released convicts.

(2)A history sheet may be opened by, or under the written orders of, a police officer not below the rank of inspect for any person not entered in the surveillance register who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons.

(3)........."

(10) The case in hand is covered under Sub-rule (2) of Rule 23.9 as his history sheet was opened when he was not entered in the surveillance register. For opening the history sheet of such a person the requisite essential is that he should be one who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons. The opening of the history sheet of the petitioner by the S.H.O. is bad for two obvious reasons viz.:

(A)in all the above mentioned five criminal cases the petitioner had , been acquitted by the courts which tried him, and

(B)all those five cases pertain to the period from 17/9/69 to 8/11/72 whereas the history sheet was opened after the lapse of about five years and nine months and this long gap was sufficient to snap the proximity of those cases from the history sheet.

(11) The history sheet file records still earlier six cases - all under the Gambling Act-in which the petitioner had been fined by the courts trying him and the amounts of fine in those cases were Rs. 40.00, Rs. 40.00, Rs. 20.00, Rs. 300.00, Rs. 40.00 and Rs. 300.00 respectively. Those cases pertained to the years 1960, 1955, 1955, 1967, 1958 and 1967. Those cases too being of still earlier' period than the period of the other set of five cases already detailed above, cannot be said to have any proximity with the opening of the history sheet which was opened after a long period on 31/7/1978. It would be further noted that the petitioner's conviction under the fifth case of 28th May, 1967 had been set aside in appeal as per the assertion in the writ petition, Those cases were also the subject-matter for the Deputy Commissioner of Police (Crime Prevention) for initiating proceedings against the petitioner under Section 48 of the Delhi Police Act, 1978 whereupon notice dated 21/11/1978 under Section 50 of the said Act was challenged by the petitioner as already pointed out above, in Criminal Writ No. 65 of 1979 in this Court and the same was quashed by a Division Bench of this Court comprising of V.D.Mishra and J.D. Jain, JJ. on the ground that the convictions were not proximate and hence not relevant. Thus, in view of the judicial finding of this Court in that writ petition, the history sheet could not be opened by the S.H.O. on the basis of those cases, nor on the cumulative basis of the above mentioned two sets of cases.

(12) For the aforesaid reasons the history sheet opened by the S.H.O. is held bad as not satisfying the test, already stated above and contemplated by Sub-rule (2) of Rule 23.9 of the Punjab Police Rules, 1934, retarding the petitioner as one who is reasonably believed to be habitually addicted to crime or to be an aider or abettor of such persons as the belief of the S.H.O. in regard to the petitioner regarding his habitual addiction to crime or as an aider or abettor of criminals cannot be said to be reasonable in view of the reasons set out above, and thus the opening of the history sheet of the petitioner has to be quashed.

(13) Under Sub-rule (2) of Rule 23.4 of the Punjab Police Rules, 1934, in Part I of the Surveillance Register No. X shall be entered the names of those persons who were commonly resident within or commonly frequenting the local jurisdiction of the police station concerned and who belong to one or more of the following classes :-

(A)All persons who have been proclaimed under Section 87, Code'of Criminal Procedure.

(B)All released convicts in regard to whom an order under Section 565, Criminal Procedure Code, has been made.

(C)All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code.

(D)All person restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918.

(14) It would be seen that the petitioner does not belong to any one of the above mentioned four classes of persons and thus there could be no question of his name being entered in Part I of the Surveillance Register No. X. Such entry of the petitioner's name was recommended by the Assistant Commissioner of Police only on the basis of the aforesaid history sheet recorded by the S.H.O. which recommendation was agreed to by the Deputy Commissioner of Police concerned. In the face of Sub-rule (2) of Rule 23.4 such like history teeters cannot be entered in Part 1. of-the Surveillance Register No. X and consequently the order of Deputy Commissioner of Police making such an entry in Part I of the Surveillance Register No. X in regard to the petitioner is also bud.

(15) As a result of the above discussion, the opening of the history sheet of the petitioner as also the petitioner's entry in Part I of the Surveillance Register No. X are quashed.